In the Matter of the Care and Treatment of Roger Dale McCoy

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

In the Matter
of the Care and Treatment of Roger Dale McCoy, Appellant.

Appeal From Greenville County

 Edward W. Miller, Circuit Court Judge

Unpublished Opinion No. 2008-UP-261

Heard March 6, 2008 – Filed May 15, 2008

AFFIRMED

Chief Attorney Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Attorney General Deborah R. J. Shupe, Assistant
Attorney General R. Westmoreland Clarkson, all of Columbia, for Respondent.

PER CURIAM:  In
this commitment action under the Sexually Violent Predator Act (Act)[1], Roger Dale McCoy appeals the circuit
court’s allowance of certain testimony by the State’s expert witness.  McCoy
contends the testimony was irrelevant, was unfairly prejudicial, and improperly brought into issue the character of his
expert witness.  We affirm. 

FACTS

McCoy pled guilty to two counts of first-degree criminal sexual
conduct and one count of indecent exposure.  He was incarcerated for those crimes
in 1998.  In 2004, pursuant to the Act, the South Carolina Department of
Corrections (Department) assessed McCoy and determined he was a sexually
violent predator as defined by section 44-48-30 of the South Carolina Code. 
The Department then petitioned the circuit court to order a formal evaluation
of McCoy and, if a jury determined he was a sexually violent predator under the
Act, to commit McCoy to the custody of the South Carolina Department of Mental
Health for care and treatment until he could safely re-enter society.   

The circuit court found probable cause existed for McCoy’s
continued detention and ordered McCoy evaluated.  On June 21, 2005, the circuit
court tried the issue of whether McCoy should be committed as a sexually
violent predator.  During the trial, McCoy cross-examined the State’s expert
witness, Dr. Pamela Crawford, as to her expert opinion. McCoy then presented
attorney Larry Crane, who testified Dr. Crawford’s testimony in McCoy’s trial
differed from her testimony in prior sexually violent predator trials.  During
Dr. Crawford’s rebuttal testimony, McCoy questioned whether she had referred a
serial rapist to the defense expert, Dr. Thomas Martin, and attorney Crane.  Dr.
Crawford’s affirmative response included statements that Dr. Martin was “[a]
doctor who had a very liberal sense of letting people go” and “who lets people
go and is known in the community for letting people go when they’re very
dangerous.”  Dr. Crawford further stated she had recommended Dr. Martin and
Crane to the other patient because she believed they were the people most
likely to “get [him] off.”  McCoy objected to these statements.  Although the
circuit court stopped Dr. Crawford from testifying as to the details of another
case in which Crane represented a sexually violent predator, it permitted Dr.
Crawford to continue her testimony regarding Dr. Martin and Crane and allowed
McCoy to question Dr. Crawford further. 

The jury ultimately found McCoy was a sexually violent predator. 
The circuit court ordered McCoy committed to the Department of Mental Health for
long-term treatment upon completion of his sentence.  This appeal followed.

STANDARD OF REVIEW

The
admission of evidence is within the discretion of the circuit court and will
not be reversed by an appellate court absent an abuse of discretion.  State
v. McDonald, 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000).  A circuit
court’s ruling on the admissibility of an expert’s testimony constitutes an
abuse of discretion when the ruling is manifestly arbitrary, unreasonable, or
unfair.  Fields v. Regional Med. Ctr. Orangeburg, 363 S.C. 19, 26, 609
S.E.2d 506, 509 (2005). 

LAW/ANALYSIS

McCoy
argues the circuit court erred in allowing Dr. Crawford’s testimony concerning Dr.
Martin.  McCoy contends the testimony was irrelevant, was unfairly prejudicial,
and improperly brought into issue Dr. Martin’s character.  We disagree. 

I. Relevance

McCoy’s
objection to Dr. Crawford’s testimony as irrelevant is unpersuasive.  “‘Relevant
evidence’ means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.”  Rule 401, SCRE.  “A witness
may be cross-examined on any matter relevant to any issue in the case,
including credibility.”  Rule 611, SCRE.  A witness may be re-examined and
cross-examined to rebut the testimony of another witness.  Id.  Any
party may impeach a witness.  Rule 607, SCRE. 

Under
Rule 401, Dr. Crawford’s credentials, expert opinion, and credibility were all
relevant to the question of whether McCoy fit the criteria of a sexually
violent predator under the Act.  As an expert witness, Dr. Crawford offered
expert testimony on which the jury could choose to rely in making its decision. 
McCoy’s first cross-examination of Dr. Crawford elicited her credentials and tested
her expert opinion.  After examining attorney Crane regarding Dr. Crawford’s
testimony at prior trials, McCoy attempted to use his second cross-examination
of Dr. Crawford to diminish her credibility.  During this second encounter,
McCoy questioned whether Dr. Crawford had referred another patient to Dr.
Martin and attorney Crane.  Dr. Crawford answered and explained why she had
made the referral.  The circuit court maintained control over the interrogation
of Dr. Crawford, stopping her answer when it no longer pertained to the
question and exercising appropriate discretion by allowing Dr. Crawford to
explain her answer.  Because Dr. Crawford’s statements were relevant, the
circuit court did not abuse its discretion in admitting her testimony. 

II. Unfair Prejudice

McCoy’s
argument that even if Dr. Crawford’s testimony was relevant, it nevertheless was
unfairly prejudicial, is equally unsuccessful.  Otherwise relevant evidence
“may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice.”  Rule 403, SCRE.  To warrant reversal based on the
admission or exclusion of evidence, the complaining party must prove both the
error of the ruling and the resulting prejudice.  Fields, 363 S.C. at
26, 609 S.E.2d at 509.  To show prejudice, reasonable probability must exist
that the jury’s verdict was influenced by the challenged evidence or the lack
thereof.  Id. 

On
appeal, McCoy fails to prove prejudice.  McCoy asserts Dr. Crawford’s testimony
implied Dr. Martin’s “professional opinion was for sale” and the State
“exploited” this testimony in closing argument.  However, the trial transcript
supports neither assertion.  Dr. Crawford’s assessment of Dr. Martin as a
doctor with a “very liberal sense of letting people go” recognized the doctors’
opinions differed vastly without impugning Dr. Martin’s integrity as an honest
practitioner.  In closing argument, both parties attempted to “spin” Dr.
Crawford’s statements in a light favorable to their respective positions. 
McCoy ridiculed Dr. Crawford’s reasoning for her referral as “preposterous.” 
The State characterized it as honesty and “good faith.”  Neither party
insinuated this testimony condemned Dr. Martin.  The trial transcript simply
does not support an inference of reasonable probability that the disputed
testimony influenced the jury.  Therefore, the circuit court did not err in
admitting Dr. Crawford’s testimony.

III.  Hearsay

During
cross-examination of Dr. Crawford, McCoy objected to her testimony, stating,
“And it’s hearsay about Dr. Martin’s reputation in the community.”  This argument
is also meritless.  With limited exceptions, “[e]vidence of a person’s
character or a trait of character is not admissible for the purpose of proving
action in conformity therewith on a particular occasion.”  Rule 404(a), SCRE.  McCoy
seems to argue on appeal Dr. Crawford’s testimony was offered as evidence “that
the defense expert may have been mistaken in an unrelated case.”  However,
McCoy, and not the State, elicited this testimony from Dr. Crawford.  Neither
the State nor Dr. Crawford offered this testimony “for the purpose of proving
action in conformity” with a trait of Dr. Martin’s character, but rather for
the purpose of explaining the bases of Dr. Crawford’s decision to make a
referral brought into issue by McCoy himself.  Consequently, Rule 404(a) does
not apply, and the circuit court did not err in admitting this testimony. 

CONCLUSION

The
circuit court did not err in admitting Dr. Crawford’s testimony concerning her
decision to refer another patient to Dr. Martin.  With her credibility under
attack, Dr. Crawford explained the bases for her decision to make the referral,
and no prejudice resulted.  Accordingly, the decision of the circuit court is

AFFIRMED. 

HEARN, C.J.,
PIEPER, J., and CURETON, A.J., concur.

[1] S.C. Code Ann. §§ 44-48-10 to -170 (Supp. 2007).